Kelliher, Steven
The Steering Committee of the International Criminal Bar (ICB) met in Paris November 24 2002 in order to further refine its Constitution, prepare a second draft of the Code of Professional Conduct and to settle on the terms of the organization’s legal status within the Netherlands. Amazingly, all of this was scheduled within a day and a half meeting of approximately 40 representatives from most areas and legal systems of the world.
Canada was represented on the Steering Committee by Elise Groulx, Founder and President of the International Criminal Defence Attorney’s Association (ICDAA), François Daviault of the Canadian Bar Association, and Erick Vanchestein, who was standing in for Claude Leduc, President of the Quebec Bar Association. Steven M. Kelliher of Lawyers Rights Watch of Canada, along with four other Canadian lawyers, attended as observers.
A brief review of the organizational history of the ICB may be helpful. After the Nuremburg and Tokyo trials, it was deemed necessary to form a Court with jurisdiction, complementary to the nation states, over genocide, crimes against humanity and war crimes. The Rome Statute created the International Criminal Court and was accepted by UN member states 17 July 1998 and came into force 1 July 2002 60 days after the 60 ratification. The International Criminal Court will begin operations in 2003.
The Rome Statute also created the offices of the Prosecutor and Registrar but made no mention of the defence. Ms. Elise Groulx first drew international attention to this oversight and lobbied on the principle that the ICC would not be complete without an International Criminal Bar that was accepted by the States Parties as well as the ICC as having a standing equivalent to that of the office of the Prosecutor.
Ms. Groulx eventually garnered the support of the Paris Bar and a number of non government organizations (NGOs). In December of 2001, the first organizational meeting of the ICB was held in Paris, jointly sponsored by the IDCCA and the Paris Bar. A general invitation to any interested criminal lawyers was issued and about 300 delegates attended. Kelliher felt that this meeting accomplished very little other than underscoring the difficulties inherent in forming a single Bar drawing from a world of political and professional diversity.
The Steering Committee, which arose from this conference, next met in the Hague for the purpose of preparing a draft Constitution for an International Criminal Bar. The draft constitution was presented at the meeting held in Montreal June 13-15 2002. By this time, Ms. Groulx had the world’s attention and there were approximately 350 participants from 48 different States in attendance.
The June 2002 conference was held under the chairmanship of His Excellency Philippe Kirsch, President of the Preparatory Commission for the ICC and Ambassador of Canada to Sweden, and under the auspices of Mr. Walter Schwimmer, secretary general of the Council of Europe. Sponsoring organizations included the Ordre des Avocats à la Cour de Paris; International Criminal Defense Attorneys Association (whose president, Elise Groulx, spearheaded the effort to create the ICB); Nederlandse Orde van Advocaten; Deutscher Anwalt Verein; Barreau du Quebec; Barra Mexicana Colegio de Abogados; Bar of Montreal; Bar of Senegal (representing the French speaking African Bars); AsF-World (Lawyers without Borders); and (U.S.) National Association of Criminal Defense Attorneys.
Near the conclusion of the June 2002 Montreal meeting, a resolution was passed creating the ICB. In July 2002 the Preparatory Commission of the ICC at their 10th session, recognized the creation of the ICB and appointed a contact person to deal directly with the ICB. The Preparatory Commission also committed itself to placing the ICB on the agenda of the States Parties once a final Constitution had been adopted.
The Steering Committee next met in Paris on November 23 and 24, 2002 for the purposes of further refining the Constitution and re-submitting a proposed code of professional conduct and ethics, as well as forming sub-committees to prepare for the first General Assembly of the International Criminal Bar which is to take place in Berlin on March 21 and 22, 2003.
The November 2002 Paris meeting focused on essentially three areas: governance, the role of the ICB and the creation of sub-committees:
Governance
The draft Constitution approved at the June 2002 Montreal conference provided a veto in the General Assembly for both individual as well as collective members. This issue was important given the debate as to whether the ICB should be a Bar of Bars or a Bar made up of and controlled principally by individual counsel. This point was settled by the political reality that either it would be overwhelmingly a Bar of Bars or the National Bars would withhold their support and the ICB would never come to be. The individual veto however, remained.
When the Steering Committee next met, strong exception was taken to the continued existence of this veto power but it was felt that the Steering Committee did not have the authority to override the clear intent of the Montreal conference. This issue arose again in Paris on November 24th and threatened to divide the meeting.
It was ultimately resolved by some artful drafting which effectively provided individual members with a veto in the General Assembly but removed that specific wording from the Constitution.
The less contentious but nonetheless important point was clarified that the votes of the Bars of each State would be recorded as one joint vote per State.
Role of the ICB – Victims v. Accused
It should be noted that this organization is the International Criminal Bar, not the International Criminal Defence Bar. This is because the ICB is to represent all counsel, other than prosecutors, who plead before the International Criminal Court. This will include counsel for accused as well as victims and on occasion counsel acting for States Parties who may intervene on certain matters.
While the whole concept of this Bar emerged from the absence of international consideration of the rights of the accused to an effective defence, the political reality at the UN was such that unless the Bar were to include victims’ counsel it would not receive the support of the NGOs and would not therefore have the political support necessary to be presented to or accepted by the States Parties.
One of the functions the ICB set out in the proposed Constitution is that the ICB is to work with the Registrar and the Court in the: “development and amendment of the Elements of Crimes, Rules of Procedure and Evidence and other relevant instruments of the Court…” The NGOs and particularly the victims’ rights organizations took the position in Paris that their voice might well be lost in this process; the fear being that ICB would in all probability speak to these issues from the perspective of the interests of the accused rather than those of the victims.
To remedy this problem these parties proposed a re-drafting of the proposed Constitution deleting these functions, which they describe as “lobbying” from the Constitution of the ICB. They argued that this lobbying function should be undertaken by the ICDAA for defence counsel and victims’ rights organizations for victims’ counsel. While such a radical departure from the principles adopted in Montreal seems very unlikely, there is not doubt that this issue will be raised and argued in Berlin. It should be noted that the NGOs, are extremely well organized and appear to exercise significant influence in all matters to do with the International Criminal Court.
Committees
An Advance Team, which is essentially a pared-down version of the Steering Committee, was formed in Paris to superintend the work of the four sub-committees in their preparations for the Berlin General Assembly in March 21-22 2003.
These sub-committees include: Organization and Finance, of which Kelliher has been appointed a member; Ethics, Professional Training and Legal Aid.
Comment
It is expected that cases will be referred to the International Criminal Court before the end of 2003. Election of Judges takes place in February 3-7 2003. An interim Registrar has been appointed and active recruitment is underway to fill the various administrative positions attached to the Court as well as the key position of the Prosecutor.
The Interim Registrar has signaled his intention to begin working with the ICB on the rules of evidence and procedure once the Constitution has been approved by the General Assembly in Berlin and the ICB should have its office up and running in the Hague by the summer of 2003.
What seems most clear in this process is that the speed of events has taken all persons concerned by surprise. According to Kelliher’s sources, no one realistically expected the Rome Statute to receive the necessary number of ratifications to bring the Court to life for at least another decade. In so far as Canada is concerned, the Federal Government is, of course, deeply involved in the creation of the International Court and the Departments of Justice, Foreign Affairs and the Military have maintained an interest in the development of the International Criminal Bar. The Law Societies and Provincial Bars, other than Quebec have not however been significantly engaged in this process to date.
It has been proposed that representatives of various interested organizations and individuals within Canada meet prior to the Berlin General Assembly. The Advance Team will be receiving applications from individual, collective and associate members for registration at the first General Assembly and it is this list that will determine who is to speak and who is to vote.